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Legal Challenges of War in Areas of Problematic Sovereignty

02/03/2013
| by Libman, Liron (Col. Ret.)

The legal challenges of war in areas of problematic sovereignty are closely connectedto the prevalence of non-state armed groups involved in armed conflicts.

Radical non-state groups may use violence to achieve their aims, whether by initiating terror attacks, committing sabotage or instigating riots. However, in areas where the sovereign has control, this violence cannot reach the minimum level to be considered an "armed conflict".

This connection is evident in the second additional Protocol to the Geneva Conventions, dealing with non-international armed conflicts.AP II applies to the clash between a state's armed forces and dissident armed forces or other organized armed groups only if the latter "exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations…". Without this level of control over territory by non-state armed groups, their actions remain "internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of similar nature", which are not considered an "armed conflict" on which the Laws of armed conflict (LoAC) apply. Government forces will have to handle these acts of violence using only law-enforcement measures.

Israel has experienced fighting in such areas for decades, each incident showing unique characteristics, and thus may serve, unfortunately, as a "lab" for examining the different problems that arose and the various responses to them.

South Lebanon was such an area from the seventies, when PLO and other Palestinian armed groups took control during the civil war in the south of that country and used it as a base for attacks on Israel, until Israel finally invaded Lebanon in 1982. Later, the Shiite armed group Hezbollah took over the area and used it in the same way, as evidenced most dramatically during the war in the summer of 2006.

Moving from the north to the east, the PLO launched attacks on Israel from Jordan in the late sixties, until, in September 1970 (called by the Palestinians "black September") after a failed attempt to assassinate king Hussein of Jordan, Jordanian government military forces cracked down on the Palestinian armed strongholds in Jordan.

While in Lebanon and in Jordan it was clear who the sovereign was formally and who was challenging their authority, in the West Bank and the Gaza strip there is ambiguity as to sovereignty itself. In these areas, too, an armed conflict between Palestinian armed groups and Israel started in September 2000 and is still ongoing with changing degrees of intensity.

Last, but not least, we are witnessing in recent years the strengthening of Jihadist armed groups in the Sinai Peninsula in Egypt. Some of these groups are local, some connected to Hamas in Gaza and some to Al-Qaida. Last August, after 16 Egyptian border guards were killed in an attack of such a group, stealing an Egyptian armed vehicle and crossing the border to Israel in an attempt to carry on the attack, Egyptian military forces started an operation in an effort to crack down on these groups. While there is no question as to Egyptian sovereignty in Sinai, there are limitations on the scale and quality of Egyptian armed forces in Sinai, agreed upon in the Peace treaty with Israel. The Jihadists are able to take advantage of these limitations.

In the future, because of the regional turmoil, additional areas of problematic sovereignty may be created, for instance, as a result of the strife in Syria and the weakening of central government there.

In this paper I will examine some of these problems in the "chronological" order of their appearance, from the Jus Ad Bellum questions in the beginning of warfare, through the Jus in Bello issues of conducting hostilities, and finally to questions of the end of the armed conflict.